Legal Argument: The Structure and Language of Effective Advocacy

Abstract

Many law students experience their legal education primarily as a disjoint series of exposures to apparently unconnected bodies of substantive law, threaded together badly, or not at all, by haphazard exposure to some unarticulated common methodology. For many students, the difficulty lies not in understanding legal materials, nor in performing research, nor in writing up arguments they have been directed to make. Instead, the difficulty often lies in producing good arguments in the first place. They can read and understand the cases, and they stand ready to write a brief making the best possible arguments based on the relevant legal materials - but what are those arguments? How can they be identified? Cases and statutes don't yield this information. Once you have assembled them, they just lie there, inertly. How does the student actually go about putting these materials to work?

This book has two main purposes. The first is to explain how lawyers construct legal arguments. In this regard, the book is meant to be a purely practical guide to the seemingly mysterious process by which lawyers take the raw materials of litigation - cases, statutes, testimony, documents, common sense - and mold them into instruments of persuasive advocacy. The book's second purpose is to explain how to take a well-constructed legal argument and present it, in writing, in a way that legal decision makers will find persuasive.

The centerpiece of the book is a step-by-step method, based on the construction of syllogisms, designed to walk the advocate through the process by which a winning argument may be crafted. Although the book develops a sharply defined protocol, its method does not save the user work, thereby providing some kind of shortcut to effective advocacy. On the contrary, the book's method creates work, making advocacy harder, though in the end more effective. It does this by forcing advocates to think through issues that they might not otherwise consider, and to do so thoroughly and systematically. In doing this, the method enforces a kind of discipline to which all good advocates inevitably must adhere.

The book is organized into five parts. Part I sets out a general methodology for constructing legal arguments. This methodology centers on the use of syllogisms and the process of grounding their premises. Part II focuses more closely on the construction of persuasive, well-grounded legal premises, and covers the effective integration of legal doctrine and evidence into the argument's structure. Part III shows how to put the method to work by giving two detailed examples of the construction of complete legal arguments from scratch. Part IV provides a detailed protocol for reducing well-constructed legal arguments to written form, along with a concrete illustration of that process. It also provides concrete advice on how to recognize and avoid a host of common mistakes in the written presentation of legal arguments. Finally, Part V moves from the basics into more advanced techniques of persuasive legal argument, including rhetorical tactics of framing and emphasis, how to respond to arguments, maintaining professionalism in advocacy, and the ethical limits of argument.

Keywords: legal writing, argument, advocacy, syllogisms, briefs